Opinion
Case No. 8:19-cv-02665-SAL-JDA
04-21-2020
Terron Gerhard Dizzley, Plaintiff, v. Sgt. Pate, Ms. Green, Officer Brown, Off. Thorn, Ms. Brown, Off. Cleveland, Off. Martin, Ms. Jackson, Officer Nethertan, Officer Parish, Officer Smith, Warden Anabinet, Regional Director Davis, Reginald L. Weston, Miracle D. Davenport, Brittany M. Livingson, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's motion to renew temporary restraining order ("TRO") and preliminary injunction. [Doc. 41.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review all pretrial matters in cases filed under 42 U.S.C. § 1983 and to submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action on September 16, 2019, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. [Doc. 1.] On February 10, 2010, the Clerk docketed from Plaintiff a motion to renew TRO and preliminary injunction. [Doc 41.] On February 24, 2020, Defendants Warden Anabinet, Regional Director Davis, Officer Martin, Officer Nethertan, Officer Parish, Sergeant Pate, and Officer Thorn (the "Responding Defendants") filed a response in opposition to the motion. [Doc. 46.] Accordingly, the motion is ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on September 16, 2019. [Doc. 1-2 at 1 (envelope, stamped as received by the prison mailroom on September 16, 2019).]
The Responding Defendants were the only Defendants who had been served as of February 24, 2020. On the same day, counsel accepted service on behalf of Defendants Ms. Green, Ms. Brown, Officer Cleveland, Ms. Jackson, Officer Smith, Reginald L. Weston, Miracle D. Davenport, and Brittany M. Livingson. [Doc. 44.] Service for Defendant Officer Brown is due by June 1, 2020. [Docs. 48 at 2; 51.]
BACKGROUND
Plaintiff is an inmate in the custody of the South Carolina Department of Corrections ("SCDC") and is incarcerated at the Broad River Correctional Institution ("Broad River"). He initiated this action by filing a hand-written document that he titled an "Order To Show Cause For A Temporary Restraining Order[] and A Preliminary Injunction." [Doc. 1 at 1.] The Court directed Plaintiff to complete the Court's standard complaint form [Docs. 7 at 3; 13 at 3], and Plaintiff subsequently submitted the standard complaint form along with additional pages and a filing that he titled an "Amendment To Temporary Restrain[in]g Order," which were added as attachments to his original filing [Docs. 1-3; 1-6]. The facts in this background section are compiled from Plaintiff's original filing, the completed standard complaint form, the amendment to TRO, and the motion to renew TRO and preliminary injunction. [Docs. 1; 1-3; 1-6; 41.]
Plaintiff alleges that he was moved to Broad River from Lieber Correctional Institution on April 28, 2019. [Doc. 1 at 2.] Upon arrival, Plaintiff informed the administration at Broad River that in October 2017, he had been placed in a cell with an inmate who had "'extreme mental health'" problems at McCormick Correctional Institution, and that cell assignment resulted in Plaintiff getting stabbed in the head and other areas of the body. [Id.] Plaintiff requested that he be placed in the Marion or Moultrie dorm "because he feared for his life in dorms such as Wateree and Monicello, which [are] infested with gangs, drugs, killings, stabbings[,] and violence." [Id.] Nevertheless, Plaintiff was placed in Wateree with inmate Rodrick Culp as his cellmate. [Id.]
Plaintiff states that Culp "stayed up all night for days getting high, flipping out, [and] threatening" him. [Id.] Plaintiff wrote to classification and security and spoke with officers, explaining that his life was in danger and he needed to be moved immediately. [Id.] Plaintiff was subsequently moved to Monicello and then to Marion, the character dorm. [Id. at 3.] In July 2019, John Chamble was placed as Plaintiff's cellmate. [Id.; Doc. 1-3 at 6.] Chamble had just returned from the hospital with blood poisoning and was in a wheelchair and on a breathing machine. [Docs. 1 at 3; 1-3 at 6.]
Between July 2019 and September 2019, when Plaintiff initiated this action, Plaintiff was moved numerous times. First, he was moved to a cell with Willie Ray, who had also just returned from the hospital with blood poisoning. [Docs. 1 at 3; 1-3 at 6.] Ray is also a diabetic and has an amputated leg. [Docs. 1 at 3; 1-3 at 6-7.] Plaintiff contends that Ray, another inmate, and Pate facilitated Plaintiff being moved in with Ray, which violates SCDC policy. [Doc. 1 at 3.] When Ray would remove his prosthetic leg, the entire cell filled with an unbearable odor. [Docs. 1 at 3; 1-3 at 7.] Ray also cleaned his open wounds and changed his dressings in the cell. [Docs. 1 at 3-4; 1-3 at 8.] The odor made Plaintiff sick and interfered with his sleep, so he requested a room change, contending that Ray should be in a medical cell by himself. [Docs. 1 at 4; 1-3 at 8.] Pate told Plaintiff that he would have to speak with Green, who is director of the character-based program. [Docs. 1 at 4; 1-3 at 8.] The next day, Plaintiff appeared before Green, Pate, and other prison officials, and Green told him that if he wanted to change rooms, he would have to sign out of the character-based program and move to Wateree, which Plaintiff contends is "the worst[,] most violent dorm." [Docs. 1 at 4-5; 1-3 at 8-9.] Plaintiff filed a grievance, and his mother called Davis. [Docs. 1 at 5; 1-3 at 11.]
Ultimately, Plaintiff was moved into a cell with John Brown. [Doc. 1-3 at 13.] Brown had a colostomy bag that he emptied and disposed of in the room [Docs. 1 at 5-6; 1-3 at 13-14]; therefore, Plaintiff was moved from one biohazardous situation to another [Docs. 1 at 5; 1-3 at 14]. The smell in his new cell was unbearable, and Plaintiff again began throwing up. [Docs. 1 at 5-6; 1-3 at 14.] Plaintiff explained the situation to Green and told her he felt like they were assigning him these cellmates on purpose to try to push him to harm himself and give up on life. [Docs. 1 at 6; 1-3 at 14.] Plaintiff was subsequently informed that he would be moved to Monicello where an inmate had recently been murdered. [Docs. 1 at 6; 1-3 at 15.] Further, Monicello was "not a safe environment and the air [wa]s filled wi[th] tobacco and drug smoke." [Doc. 1-3 at 17.] When he was moved to Monicello, he was assigned a cellmate who was in a gang and had "extreme mental health problems." [Docs. 1 at 6 (internal quotation marks omitted); 1-3 at 20.] Plaintiff contends this was in retaliation for his grievances. [Doc. 1-3 at 15.]
Around 2:30 a.m. on September 13, 2019, Plaintiff got up to urinate, and his cellmate came to him and told him to move out of the way so that the cellmate could urinate. [Docs. 1 at 6; 1-3 at 20.] The cellmate was very aggressive, yelling, cursing, and threatening Plaintiff. [Docs. 1 at 6; 1-3 at 20.] Thorn heard the noise and came to the door. [Docs. 1 at 6; 1-3 at 20.] Plaintiff asked Thorn to call for assistance to remove him from the cell, but Thorn refused and instead, he stood at the door taunting Plaintiff and his cellmate to try to get them to fight. [Docs. 1 at 6-7; 1-3 at 20.] Plaintiff stood by the door all night because he feared his cellmate would kill him if he went to sleep. [Docs. 1 at 7; 1-3 at 20-21.] Thorn would not let Plaintiff out of his cell to go to work the next morning [Docs. 1 at 7; 1-3 at 21], and at shift change, Plaintiff explained the situation to Martin and Weston [Docs. 1 at 7; 1-3 at 21]. Martin and Weston also refused to help. [Docs. 1 at 7; 1-3 at 21.] Around 9:30 or 10:00 a.m., Lieutenant Chandler and Officer Brown came to Plaintiff's cell and stated that whoever moved out would move to Wateree. [Docs. 1 at 7; 1-3 at 22.] Plaintiff exited the cell and was left waiting for about four hours, then he explained to Chandler that he feared for his life in Wateree and Monicello. [Docs. 1 at 7; 1-3 at 22.] He asked to be moved to Marion or Moultrie and stated that he would sign a protective custody form to be placed on lockup. [Docs. 1 at 7-8; 1-3 at 22.] He was then handcuffed by Cleveland and others "so tight that [his] wrist[s] were swollen," dragged "like an animal by [his] arms and legs almost dislocating [his] shoulder," and slammed into the wall twice. [Docs. 1 at 8; 1-3 at 24.]
Although Plaintiff refers to this Defendant as "Wesson" [Docs. 1 at 7; 1-3 at 21], counsel informed the Court that this Defendant's name is Reginald D. Weston [Doc. 44].
Plaintiff was placed in a cell in Wateree with Bobby Thompson, an "'extremely mentally ill' inmate" who cut himself and had killed another inmate. [Docs. 1 at 8; 1-3 at 24-25.] Being in the cell with Thompson "was like being in the cell with 2 different people." [Doc. 1-3 at 25.] Thompson would misplace something and threaten Plaintiff, accusing him of stealing it, and would wake up around 2:00 or 3:00 a.m., turn the light on, pace, talk to himself, threaten Plaintiff, and lie back down. [Id.]
On September 20, 2019, Princeton Thrower was placed as Plaintiff's cellmate in Wateree. [Doc. 1-3 at 27.] The next day, "Thrower began throwing up violently until he started throwing up blood." [Id.] Thrower, Plaintiff, and other inmates began screaming and banging on the door, but it took 45 minutes for Nethertan to come to the door, and then he refused to call medical or provide any cleaning supplies. [Id.] Plaintiff filed a grievance about the situation. [Id. at 28.] However, this continued for days, and every day when Plaintiff returned from work, the officers locked him in the cell and refused to give him cleaning supplies or allow him to take a shower. [Id.]
After complaining to multiple prison officials about the situation, Plaintiff was finally called to operations to sign a protective custody form on September 27, 2019, because classification refused to move him to a safe environment. [Id. at 29.] After about two hours, Plaintiff was "taken to lock Administrative Protective Custody." [Id.] Plaintiff requested his property for two weeks, and when he was finally taken to his property, his television, trial transcripts, legal books, family pictures, legal supplies, and $80 worth of food were missing. [Id.] Additionally, Plaintiff remained on lockup from September 27, 2019, through October 30, 2019, with no disciplinary charge, and he contends he remained on lockup in retaliation for filing grievances. [Id.; Docs. 1-6; 41 at 1.]
On October 30, 2019, Plaintiff was sent back to the character dorm. [Doc. 41 at 1.] Plaintiff had no issues with his cellmate; however, weeks later, Kelvin Parker, an "'extremely mentally ill inmate,'" was moved in with Plaintiff. [Id. at 2.] On December 1, 2019, Plaintiff "wrote classification on the kiosk and asked them why have they placed a 'mentally ill inmate' in the cell with him when they knew this was the main reason he had to hire a lawyer [and] the main reason he got stabbed in 2017." [Id.]
Plaintiff contends that Pate is using multiple tactics to try to get Plaintiff kicked out of the dorm, including having Plaintiff written up for not working when he cannot work because of an injury to his shoulder, getting him fired from his law library job, and forcing him to share a cell with mentally ill inmates. [Id. at 2-3.] On February 4, 2020, Plaintiff was presented with false allegations of sex abuse from his cellmate who is mentally ill. [Id. at 3.] In his motion to renew TRO and preliminary injunction, Plaintiff requests "that this 'extremely' mentally ill inmate [be] removed from the cell . . . and administration cease from placing me in the cell with mental health inmates [because he] fear[s] for [his] life in the cell with this man." [Id. at 4.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under § 1983
This action is filed pursuant to 42 U.S.C. § 1983, which provides a private cause of action for constitutional violations by persons acting under color of state law. Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Accordingly, a civil action under § 1983 allows "a party who has been deprived of a federal right under the color of state law to seek relief." City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). Section 1983 provides, in relevant part,
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or any person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .42 U.S.C. § 1983. To establish a claim under § 1983, a plaintiff must prove two elements: (1) that the defendant "deprived [the plaintiff] of a right secured by the Constitution and laws of the United States" and (2) that the defendant "deprived [the plaintiff] of this constitutional right under color of [State] statute, ordinance, regulation, custom, or usage." Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (third alteration in original) (citation and internal quotation marks omitted).
Requirements for a Preliminary Injunction
A preliminary injunction is "an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in the limited circumstances which clearly demand it." Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 811 (4th Cir. 1991)) (internal quotation marks omitted). "The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." United States v. South Carolina, 720 F.3d 518, 524 (4th Cir. 2013) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)) (internal quotation marks omitted). Because granting a motion for preliminary injunctive relief "requires that a district court, acting on an incomplete record, order a party to act, or refrain from acting, in a certain way[,] [t]he danger of a mistake in this setting is substantial." Hughes Network Sys., Inc. v. InterDigital Commc'ns Corp., 17 F.3d 691, 693 (4th Cir. 1994) (quoting Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd., 780 F.2d 589, 593 (7th Cir. 1986)) (internal quotation marks omitted). Accordingly, the decision whether to grant a preliminary injunction is committed to the equitable discretion of the district court. See Salazar v. Buono, 559 U.S. 700, 714 (2010); Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007).
The current standard for granting preliminary injunctive relief is set forth in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008). Under Winter, to obtain a preliminary injunction, the moving party must demonstrate:
1) he is likely to succeed on the merits,
2) he will suffer irreparable harm if the preliminary injunction is not granted,
3) the balance of equities favors him, and
4) the injunction is in the public interest. 555 U.S. at 20; see also League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). Moreover, Winter requires that each preliminary injunction factor "be 'satisfied as articulated.'" Pashby v. Delia, 709 F.3d 307, 320-21 (4th Cir. 2013) (quoting The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 347 (4th Cir. 2009), vacated on other grounds, Citizens United v. FEC, 558 U.S. 310 (2010), aff'd, The Real Truth About Obama, Inc. v. FEC, 607 F.3d 355 (4th Cir. 2010) (per curiam)). To succeed, Plaintiff must satisfy all four of these requirements. Pashby, 709 F.3d at 320-21. Therefore, the movant bears a heavy burden in seeking a preliminary injunction. Id. at 321.
DISCUSSION
Along with their response opposing Plaintiff's motion, the Responding Defendants have submitted email correspondence indicating that Plaintiff is no longer in a cell with Parker. [Doc. 46-1.] Accordingly, the Responding Defendants argue that Plaintiff's request to have Parker removed from his cell is moot. However, even if Plaintiff's request for injunctive relief is not moot, he is not entitled to a preliminary injunction because Plaintiff has not shown that he can satisfy the test articulated in Winter. Plaintiff cannot show he is likely to succeed on the merits, as he has offered nothing beyond his own conjecture to substantiate his allegations regarding Defendants' motivation for his cellmate assignments. Moreover, there is no constitutional right for a state prisoner or federal prisoner to be housed in a particular institution, at a particular custody level, or in a particular portion or unit of a correctional institution. See McKune v. Lile, 536 U.S. 24, 26 (2002) (noting that the "decision where to house inmates is at the core of prison administrators' expertise"); Meachum v. Fano, 427 U.S. 215, 225 (1976) (holding that the Constitution's Due Process Clause does not "protect a duly convicted prisoner against transfer from one institution to another within the state prison system"). The placement and assignment of inmates into particular institutions or units by state or federal corrections departments are discretionary functions, and those decisions are not subject to review unless state or federal law places limitations on official discretion. Cf. Hayes v. Thompson, 726 F.2d 1015, 1017 (4th Cir. 1984) (remanding the case for a determination of whether Virginia prison regulations limit prison officials' discretion to transfer inmates). South Carolina law confers no protected liberty interest upon SCDC inmates from being placed in a particular prison, in a particular section of the prison, or being placed in administrative segregation. See Phillips v. South Carolina Dep't of Corr., No. 8:10-1331-HFF-BHH, 2010 WL 2756910, at *2 (D.S.C. June 17, 2010), Report and Recommendation adopted by 2010 WL 2754223 (D.S.C. July 12, 2010). Because it appears that Plaintiff has been committed to the custody of SCDC, the choices related to Plaintiff's housing are to be determined by SCDC prison officials without interference by the federal courts. See Cooper v. Riddle, 540 F.2d 731, 732 (4th Cir. 1976) (noting that the district court properly found that a prison committee's decisions regarding institutional placement, security classifications, and job assignments were not subject to constitutional scrutiny). Accordingly, Plaintiff has failed to make a clear showing that he is likely to succeed on the merits of his claims, and his motion should be denied.
Plaintiff contends the Court has not taken his request for injunctive relief seriously because it has not responded to his initial filing. [Doc. 41 at 1, 3.] However, Plaintiff has never made any showing to substantiate his allegations regarding Defendants' motivation for his cellmate assignments. Therefore, the Court allowed Defendants an opportunity to respond before ruling on Plaintiff's request for injunctive relief. See Mickell v. Reynolds, No. 6:15-cv-04656-RBH-KFM, 2016 WL 3049358, at *2 n.3 (D.S.C. May 31, 2016) (noting that although "Plaintiff styled his motion as an 'order to show cause for preliminary injunction and temporary restraining order,' . . . [b]ecause Defendants ha[d] received notice and an opportunity to respond, the Court treat[ed] Plaintiff's motion as one for a preliminary injunction"). --------
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Plaintiff's motion for renewal of TRO and preliminary injunction [Doc. 41] be DENIED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge April 21, 2020
Greenville, South Carolina